The prosecution must prove the following elements beyond reasonable doubt for a person to be found guilty of indecent assault:

• The accused assaulted another person (the force used need not be violent and can be as slight as a mere touch (Collins v Wilcock [1984]1 WLR 1172);
• Intentionally;
• Without lawful justification;
• While being aware that the other person was not consenting or might not be consenting or while not giving any thought to whether the person is not consenting or might not be consenting.

See here for more information on the various elements of indecent assault.

The element of Assault

• There need not be an assault as well as an act of indecency. It is enough that the assault, in itself, is an indecent act (Fitzgerald v Kennard (1995) 84 A Crim R 333).
• Assault generally involves the application of force. This is because the legal term “assault” combines the traditional term “battery” (being actual unlawful physical contact) with the word “assault” (being the immediate threat or fear of unlawful contact). An assault can, therefore, occur without the accused ever touching the victim.
• For the assault to be indecent, the accused must have intentionally put the victim in fear of immediate physical contact of an indecent kind. Thus, as described in R v Court, if the accused requests the victim to indecently touch him or her, and the victim does not fear an immediate application of force against himself or herself, no assault is considered to have taken place.
• If there is an application of force (physical contact), such as touching or fondling or other bodily contact, this in itself will constitute an assault, provided it occurs in indecent circumstances (R v Doyle [1957] SASR 182 at 184). Under section 39, there is no requirement that the force must be aggressive or hostile in any way, and any contact, however slight, if made in indecent circumstances and without the other person’s consent, will be an indecent assault (see Bellemore v Tasmania (2006) 170 A Crim R 1 at [226]).

What amounts to indecency?

• The term “indecency” cannot be exhaustively defined. For the offence to amount to “indecent assault”, it must take place in “indecent circumstances”. Applied objectively, the Courts have often held the view that the question of indecency is to be determined according to “right-thinking members of the community” (see R v Manson, unreported, NSW CCA, 17 Feb 1993), and judged according to “community standards of decency” (see Eades v DPP (NSW) [2010] NSWCA 241 at [40] per Campbell JA).
• The following indecent assault case examples focus on the fine line between indecent assault and acceptable physical and non-physical interaction. By investigating the often blurred distinction between indecent and non-indecent assault, we can see that even the most subtle and innocuous of acts can constitute indecent assault if performed with indecent intent. Although intent is not an element the prosecution must prove in relation to indecency, it will form part of the factual matrix that allows the jury or judicial member to form a view objectively about whether the assault is, in fact, indecent.

Indecent assault examples

R v Court [1989] AC 28

The accused struck a 12-year-old girl around 12 times on the buttocks for no apparent reason. When questioned by police as to why he had done this, the man replied, “I don’t know, buttock fetish”. This had the potential to make an act that ordinarily might be considered an assault an indecent assault.

It was held that where facts show that an act may be either indecent or not, the prosecution must prove not only that the accused intentionally assaulted the victim but that, in doing so, he intended to commit an assault that right-minded persons would think was indecent. The statement made by the accused was, therefore, admissible, and he was found guilty of indecent assault, allowing the judiciary to find that, on an objective standard, the accused had assaulted the child indecently.

Sabet v R [2011] VSCA 124

The accused was a medical doctor. The victim alleged that the doctor performed physical examinations on her in indecent circumstances. The victim alleged that after the examination was completed, the doctor put his hand on her back and gave her a kiss on the cheek, something which “really shocked her”. This made her feel very uncomfortable, and she later stated she was uncomfortable during the entire examination.

The question posed to the Court was whether the doctor had indecently assaulted the victim with a combination of the exam and the kiss or whether the kiss might of itself have constituted the only indecent assault and not the remainder of the exam.

It was held that there was nothing in the kiss that could be conceived as having any sexual connotation deriving either from the manner of the kiss itself or any other touching of the victim’s body by the accused.

While there were allegations of sexual assault regarding the medical procedures, they did not flow directly from the kissing incident. It was held that the two actions were separate, and the kiss could not of itself render the rest of the procedure indecent.

The case highlights that any charge of indecent assault must be carefully examined, as it is often one person’s interpretation of an incident against another’s. Here, the victim felt violated by the kiss, while the accused believed it was a harmless action.

If you have been charged with indecent assault, the prosecution must show beyond reasonable doubt that you engaged in conduct in an indecent matter. This is judged objectively, so it will often be judged according to normal community standards. An experienced criminal lawyer may be able to show the Court that your actions should not be deemed “indecent” and you may be able to avoid serious penalties.

R v AMP [2010] VSCA 48

In this case, the accused pleaded guilty to 20 counts of indecent assault, spanning a period of 50 years. The assaults had occurred on multiple victims who were particularly vulnerable at the time, being orphaned children.

Multiple offences committed by the applicant carried with them penalties of 10 years imprisonment. The applicant was also convicted on a charge of incest, which carries a 25-year prison sentence. A plea of guilty was entered into by the accused, and the penalty was reduced to a 14-year prison sentence with a non-parole period of 9 years. Had the accused not pleaded guilty, the alternative would have been a prison sentence of 18 years as noted by the court.

This decision shows that entering a plea of guilty may significantly reduce a prison sentence, in this case by nearly 25% of the total incarceration time.

If you have been charged with indecent assault, it is critical that you consult an expert.